DPP v Drake
[2019] VSCA 293
•10 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0138
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JORDAN DRAKE | Respondent |
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| JUDGES: | MAXWELL P, PRIEST, KAYE, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 November 2019 |
| DATE OF JUDGMENT: | 10 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 293 |
| JUDGMENT APPEALED FROM: | DPP v Drake (Unreported, County Court of Victoria, Judge Stuart, 7 June 2019) (sentence) |
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CRIMINAL LAW – Appeal – Sentence – Standard sentence offence – Crown appeal – Respondent pleaded guilty to aggravated burglary, rape, attempted rape, assault with intention to commit sexual offence and sexual assault – Forced entry into victim’s home – Protracted sexual offending – Total effective sentence 12 years and six months imprisonment with non-parole period eight years – Whether judge explained how sentence related to standard sentence – Whether sentence manifestly inadequate – Totality – Proportionality – Moral culpability – Relevance of dysfunction, disadvantage and abuse during formative years – Sentence not manifestly inadequate – R v Brown [2019] VSCA 286 applied, Bugmy v The Queen (2013) 249 CLR 571, R v O’Rourke [1997] 1 VR 246 considered – Sentencing Act 1991 ss 5B, 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce QC with Ms J Warren | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr N Papas QC with Ms J Poole | Criminal Lawyers Victoria |
MAXWELL P
PRIEST JA
KAYE JA
T FORREST JA
EMERTON JA:
Overview
At about 5.30 am on 14 October 2018, the respondent, then aged 25 years,[1] broke into the residential unit of a 56 year old woman, ‘AB’, and subjected her to a terrifying and protracted sexual ordeal.
[1]He was born on 18 August 1993.
Subsequently, on 6 June 2019, the respondent was arraigned on an indictment before a judge of the County Court and pleaded guilty to aggravated burglary[2] (one charge – charge 1); rape[3] (six charges – charges 2, 3, 4, 6, 7 and 8); assault with intent to commit a sexual offence[4] (two charges – charges 5 and 11); attempted rape[5] (one charge – charge 9); and sexual assault[6] (one charge – charge 10).
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 38. The maximum penalty is 25 years’ imprisonment.
[4]Crimes Act 1958, s 42. The maximum penalty is 15 years’ imprisonment.
[5]Crimes Act 1958, ss 38 and 321M. By virtue of s 321P, the maximum penalty is 20 years’ imprisonment.
[6]Crimes Act 1958, s 40. The maximum penalty is 10 years’ imprisonment.
Following a plea in mitigation, on 7 June 2019 the judge sentenced the respondent to a total effective sentence of 12 years and six months’ imprisonment, with a non-parole period of eight years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Aggravated burglary 6 years 1 year 2 Rape 6 years Base 3 Rape 6 years 1 year 4 Rape[7] 6 years 1 year 5 Assault with intention to commit sexual offence 2 years — 6 Rape 6 years 1 year 7 Rape 6 years 1 year 8 Rape 6 years 1 year 9 Attempted rape 3 years 6 months 10 Sexual assault 1 year 6 months — 11 Assault with intention to commit sexual offence 2 years — Total effective sentence 12 years and 6 months’ imprisonment Non-parole period 8 years Pre-sentence detention 235 days Other orders Forfeiture and disposal order
Sex offender registration[8]
Section 6AAA statement 16 years’ imprisonment with 12 years non-parole [7]The respondent fell to be sentenced as a serious sexual offender on charges 4 to 11: see Sentencing Act 1991, s 6C. Although the judge said as much in his Reasons for Sentence, the respondent’s status as such is not reflected in the signed Record of Orders dated 7 June 2019.
[8]Pursuant to s 34 of the Sex Offenders Registration Act 2004, the judge declared a reporting period of 15 years.
By a Notice dated 5 July 2019, the Director of Public Prosecutions seeks to appeal against the sentence on three grounds:
1. The learned sentencing judge erred in principle by failing, as required by section 5B(4) & (5) of the Sentencing Act 1991 (Vic.), to explain as part of the stated reasons for imposing sentence on the charges of rape how those sentences related to the applicable standard sentence of 10 years’ imprisonment.
2. The learned sentencing judge erred in principle by failing to sentence the respondent on Charges 4, 5, 6, 7, 8, 9, 10 & 11 properly and in accordance with the requirements of Part 2A of the Sentencing Act 1991 (Vic.) and, in particular, in accordance with the terms of section 6E of that Act.
3. The individual sentences on charges 1, 2, 3, 4, 6, 7 and 8, the orders for cumulation, the non-parole period and the total effective sentence are manifestly inadequate in all the circumstances.
Particulars:
In fixing the sentences referred to above, the learned trial judge:
(a)failed to have proper regard to the standard sentencing scheme relevant to the charges of rape;
(b)failed to give sufficient weight to the nature and objective gravity of the offences;
(c)failed to have sufficient regard to the impact on the victim;
(d)failed to give sufficient weight to the sentencing principles of general and specific deterrence, denunciation and protection of the community;
(e)gave too much weight to factors in mitigation.
For the reasons that follow, we would dismiss the appeal.
The offending
The offending was fully described in the Summary of Prosecution Opening as follows:
Offending
5. At approximately 5:30am on 14 October 2018 the [respondent] entered the victim’s unit by forcing open the bedroom window [Charge 1 – Aggravated Burglary]. He then banged on the wall, trying to find the light switch. The victim was awoken by the noise and got up to investigate. As she approached the bedroom, the [respondent] turned on the bedroom light. The victim saw that he was naked except for shorts he held over his crotch. She had never seen him before.
6. She fled to her bathroom, shutting the door and holding it closed with her foot whilst pushing at the top of the door. The [respondent] obtained a knife from the kitchen, and attempted to force the bathroom door’s latch using the knife. When the tip of the knife broke off, he used his strength to force the door open. He grabbed the victim and forced her back into the lounge room. She did not resist as she was fearful that he would hurt her.
7. The [respondent] pushed her onto the camp bed face down. He pulled down her pants and inserted several fingers into her vagina while rubbing her clitoris [Charge 2 – Rape]. She was too scared to move.
8. He then pulled her onto the floor, grabbed her by the hair on the back of her head and shoved her head onto his penis. He was lying on the lounge room floor. He told her to suck and lick it. She initially turned her head away, but he forced his penis into her mouth and made her suck on it and lick it also [Charge 3 – Rape].
9. The victim tried to flee. She ran and reached the front door, unlocked the deadlock and started to push it open, but the [respondent] dragged her back into the unit and shut the door.
10. The [respondent] resumed touching the victim’s vagina (uncharged context). In order to distract him, the victim suggested that they have coffee. She put on her dressing gown which was on the floor of the lounge room, and slipped her phone into one of its pockets. He helped her to make two coffees, and they went out her back door to drink them. She hoped that this would create an opportunity for her to escape, but he did not sit down and hovered over her.
11. The [respondent] told the victim that he had seen her around, and had wanted to write her a letter. He said that he was friends with ‘Jason’ and had been at his place. The victim knew that Jason was the name of her next door neighbour; they shared an adjoining wall (in the same set of units) and she assumed that he was talking about her neighbour. The [respondent] said he had started writing her a letter while he was at [a friend’s place]. The [respondent] also said that he had eight children and a ‘missus’. She asked him if he had a job and he told her that he had been in prison for seven years. The victim noticed that he had a word tattooed on his upper chest in capital letters. He continued to rub his hands over her body as she drank her coffee (uncharged context).
12. The [respondent] kept alternating between trying to arouse the victim, and trying to get her to suck his penis. He again inserted his penis into the victim’s mouth [Charge 4 – Rape], but when she did not cooperate he turned her around and pushed his penis against her anus [Charge 5 - Assault with Attempt to Commit Sexual Offence]. Having been unable to penetrate her anus, he then briefly penetrated her vagina with his penis, which caused the victim pain [Charge 6 – Rape]. She kept telling him that it was hurting. He said that he wanted to shave her vagina in the shower, and picked her up and carried her inside, putting her down near the back door.
13. She convinced him to go back outside so that she could smoke. They went outside and as she sat on a chair smoking he spread her legs, knelt in front of her and inserted several fingers into her vagina [Charge 7 – Rape]. As he digitally penetrated her, he licked inside her vagina [Charge 8 – Rape].
14. The [respondent] again mentioned shaving her vagina. He picked her up and carried her back inside the unit.
15. The [respondent] then pushed the victim up against the back door and tried to penetrate her vagina with his penis. The victim told him he should give up, as she was suffering from menopause which had ‘stuffed up’ her vagina. Nonetheless, he continued attempting to penetrate her for a further few minutes [Charge 9 – Attempted Rape].
16. The victim told him that she was hot and sweaty and needed to go outside in the cool air. He agreed to her going outside a third time, but he held onto her and didn’t give her a chance to escape. He continued trying to get her aroused, ‘mauling’ her vagina with his hands [Charge 10 – Sexual Assault]. He continued attempting to make her give him oral sex, which she refused.
17. He pulled her legs apart and tried to penetrate her vagina with his penis, but she held her legs together. He then turned her around and unsuccessfully tried to penetrate her anus with his penis [Charge 11 – Assault with Attempt to Commit Sexual Offence (rolled-up to represent the acts in this paragraph)].
18. The victim asked the [respondent] to get her a drink of water and told him that there was a tap at the back of the unit. He told her to come with him, she pointed out that he could get her water in a watering can. He then said he needed to go to the toilet and began to walk back into the unit. After he had taken several steps, the victim ran out the side of her unit and down the driveway of the units towards the road. She eventually made her way to the back yard of a neighbour’s house and knocked on the door. She rang 000 while she waited for the door to be answered. Her neighbour [LR], let her into the house while she spoke to police. The victim said ‘I’ve been raped’. [LR] observed that the victim was ‘shaking uncontrollably’ and was ‘really distressed’. [LR] let her into the house and locked all the doors. Police arrived soon after.
19. Throughout the offending the [respondent] did not slur his words, smell of alcohol or appear to be affected by other drugs.
20. The victim was examined by forensic nurse examiner at 10.30am the same day (14 October 2019) who noted the following injuries:
•[Six] purple coloured spots clustered together at the top of the buttocks, area of 3x4cms;
•The right elbow had broken skin area of 2x2cms, and a purple coloured area 2x3cms;
•Reddening to the left elbow 1x1cm;
•The front left knee had broken skin area 1x1cm, and the back of the knee had a purple area 3x1cms;
•Reddened area of grazing encompassing the upper area of the inner labia with visible small ooze of blood, and there was pain on touch.
Investigation and arrest
21. Police attended. They swabbed two coffee cups which were outside on a small table. They found a broken knife tip embedded into the striker plate of the bathroom door jamb. In the bathroom and on top of the washing machine was a Smith and Nobel knife with a silver blade missing its knife tip. Police inspected the bedroom window which faced out onto the back yard. The window’s flyscreen mesh was missing from its frame, and lying on the ground together with associated black rubber tubing. The sliding window pane was also missing from the window and found on the bedroom floor. There were areas of damage around the handle on the sliding window pane and window frame.
22. The victim provided a description to police of the [respondent] who was promptly identified as a person of interest.
23. The [respondent] was arrested at his house at 11.40am on 15 October 2018 (day after the offending) and was interviewed shortly afterwards by police from the Sexual Crimes Squad.
24. He admitted knowing [his friend] … but did not recall going to his house on 13 October ... He noted that this could be due to him being ‘blind drunk’ that night ...
25. He denied any knowledge of the offending ... When advised of the forensic evidence, the [respondent] conceded that ‘obviously I’m fucked, obviously I was there…no matter what I say’ …, but maintained that ‘I haven’t done nothing’ ...
26. The [respondent] later said that ‘Obviously I fucking got drunk and I fucked up again’ … and conceded that the evidence led to him …, but made no admissions with respect to the offending.
27. He consented to giving police a sample of his DNA.
28. The [respondent]’s DNA was subsequently identified on a coffee cup found outside the unit as well as on the knife handle used on the bathroom door. Additionally, his fingerprints were identified on one of the coffee cups as well as outside the point of entry window.
The respondent’s personal circumstances
Before turning to the grounds of appeal, it is convenient to say something about the respondent’s history and personal circumstances.
The respondent’s early life was marked by severe deprivation and abuse.
Both the respondent’s mother and biological father were Aboriginal, and the respondent identifies as such. His parents separated when he was aged two years, after his mother stabbed his father in an incident related to drugs. Following the separation, the respondent went to live with his maternal grandparents whilst his mother — who was alcohol-dependent and a polysubstance drug user — undertook rehabilitation.
After she got out of rehabilitation, the respondent’s mother formed a relationship with his non-Aboriginal stepfather. His stepfather was a violent alcoholic, who would severely beat his mother and him. From the age of five, the respondent suffered gross sexual abuse at the hands of two older males. No longer able to cope with the violence that his stepfather directed at his mother and him, the respondent left home at age 12.
The respondent started drinking alcohol when aged 11, and he has drunk heavily ever since. At age 12 he started using cannabis, and he started intravenous ‘ice’ (methylamphetamine) use at 17. He has used ice regularly since that time. His mother died in 2015, and his drug use spiked. He has entered rehabilitation twice, the first time at Birribi Residential Rehabilitation (which was court-ordered) and the second time at Galiamble Men’s Recovery Centre. The respondent has had six children with his partner, but they have an ‘on again, off again’ relationship, mainly due to his substance abuse.
In his sentencing remarks, the judge summarised the respondent’s criminal history as follows:
I have carefully analysed your criminal history, as set out in the 14 pages of your criminal record. It reveals that some nine years ago you were dealt with in the Children’s Court for three charges of attempted armed robbery. You have been dealt with for assaulting or resisting police on six occasions, unlawful assault on two occasions, damaging property on seven occasions, affray on one occasion, threatening to inflict serious injury on another occasion and behaving in riotous manner on two occasions. You have but one charge relating to entry of premises without lawful excuse and a number in relation to you being involved in public disturbances; being drunk on five occasions, threatening words, behaving in an offensive manner, profane words on some four occasions, and dishonesty offences, three charges of theft and one charge of obtaining property by deception.
You have been dealt with in relation to breaching court orders concerning bail on eight occasions, breaching community corrections order on six occasions and contravening family violence intervention orders also on six occasions. Noteworthy, there are no offences of a sexual kind.[[9]]
[9]We note that a prior conviction for rape was noted in a psychological report, but the prosecution did not seek to prove prior offending of that nature.
Finally, a consulting clinical and forensic psychologist, Mr Jeffrey Cummins, assessed the respondent ‘as having a trauma related disorder in the form of PTSD [post-traumatic stress disorder] and [having] reported flashbacks and negative ruminative thinking regarding his upbringing and being sexually abused’.
Ground 1: Failure to relate sentence to standard sentence
In his reasons for sentence, the judge remarked that he had the benefit of reading the reasons of the sentencing judge in R vBrown,[10] and the written submissions provided by counsel concerning the standard sentencing scheme.[11] His Honour also observed:
In relation to the six charges of rape the provisions in relation to standard sentencing are enlivened. The standard sentence for rape is ten years. It is but one of the multitudinous matters that I must take into account. It stands no higher than any other factor, nor lower.
[10][2018] VSC 742 (Champion J).
[11]Those submissions did not, however, explicitly address the requirements of s 5B(5) of the Sentencing Act 1991.
Beyond these references, however, the judge said no more about the effect of the scheme.[12]
[12]The scheme is discussed in detail in the judgment in R v Brown [2019] VSCA 286 (‘Brown’).
In our reasons for judgment in Brown, published today, we have sought to elucidate what is — and is not — required of a sentencing court when imposing a sentence for a ‘standard sentence offence’. In that context, we have specifically addressed the content of the obligation imposed on the court by s 5B(5) of the Act to
refer to the standard sentence for the offence and explain how the sentence imposed by it relates to the standard offence.[13]
[13]Ibid [41]–[44].
It follows from what we have said in Brown that the reasons of the judge in the present case were not sufficient to satisfy the statutory requirement. Senior counsel for the Director accepted, however, that any non-compliance with s 5B(5) would not of itself vitiate the exercise of the sentencing discretion. In those circumstances, we need say nothing further on this ground.
Grounds 2 and 3: Serious sexual offender and manifest inadequacy
It is convenient to consider grounds 2 and 3 together. Ground 2 asserts a failure by the trial judge to sentence the respondent on charges 4 to 11 ‘properly and in accordance with the requirements’ of the serious offender provisions contained in Part 2A of the Sentencing Act 1991 (and, in particular, s 6E); and ground 3 contends that the individual sentences (except on charges 5, 9, 10 and 11), the orders for cumulation, the non-parole period and the total effective sentence, are manifestly inadequate.
The judge’s reasoning was fully exposed in his sentencing remarks. It is therefore convenient to set out his Honour’s reasons in some detail. He said:
This case has presented a particularly difficult exercise in sentencing you because there are no less than 11 charges. A sentencing principle which I have steadily borne in mind and taken into account is the need to impose a sentence, or sentences, which in total are appropriate. When I have mentioned that there are 11 charges here, that is not to suggest that the indictment is an overloaded one, i.e. one where there are too many charges. Each of the charges here is well warranted.
However, sentencing on 11 charges, many of which carry with them maximum penalties of 25 years’ imprisonment, namely the charge of aggravated burglary and the charges of rape, present a particular sentencing problem. How is it that I can achieve what I consider to be overall the appropriate sentence? There are two courses open. One, ordering appropriate concurrency and cumulation, and another, reducing the individual sentences from that which I would otherwise impose.
This matter was dealt with by the High Court in Mill v The Queen (1988} 166 CLR 59, in the joint judgment of Wilson, Deane, Dawson, Toohey and Gaudron JJ, at p 65, where their Honours wrote:
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below that which would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
As I have already stated in relation to Charges 4 to 11 you are to be sentenced as a serious sexual offender. Though, appropriately, the prosecution do not submit a disproportionate sentence should be imposed. I accept that.
Here the individual sentences may in some cases be seen as modest. For example, the sentence that I intend to impose on the charge of aggravated burglary of six years. Thus, I have deployed both orders for concurrency and cumulation as well as modest sentences in the main, in order to achieve the total sentence that I intend to impose upon you.
Thus, the sentencing judge, first, recognised the need to bear the principle of totality ‘steadily in mind’; secondly, acknowledged the ‘particular problem’ of remaining true to the principle of totality when sentencing on an 11 charge indictment (particularly when a number of charges have maximum penalties of 25 years’ imprisonment); and, thirdly, observed that he could apply the principle of totality — and achieve what he considered to be ‘overall the appropriate sentence’ — either by reducing the individual sentences imposed on each charge, or through orders relating to concurrency and cumulation. Ultimately, his Honour imposed a total effective sentence that satisfied the needs of totality by ‘in the main’ imposing ‘modest sentences’ on each charge, coupled with appropriate orders for concurrency and cumulation.[14]
[14]With respect to the first three charges, there is a legislative direction in s 16(1) of the Sentencing Act 1991 that any sentence passed on them was to be concurrent with other sentences unless otherwise directed. Given that the respondent was sentenced as a serious sexual offender on charges 4 to 11, however, there is a legislative direction in s 6E of the Act that the sentences passed on those charges were to be served cumulatively unless otherwise directed. (See also s 16(1A)(c).) As a result, strict compliance with the legislative regime governing concurrency and cumulation was somewhat cumbersome.
The manner in which the judge approached the issue of totality was, in our opinion, in accordance with authority.
In O’Rourke,[15] a young female medical resident at a hospital had been brutally assaulted over a period of some 20 minutes in the private medical residents’ quarter of the hospital. When sentencing the applicant in that case for rape, threatening to kill, indecent assault (two counts) and intentionally causing injury, the sentencing judge had imposed a sentence of five years’ imprisonment for rape, two years for the threat to kill and each count of indecent assault, and one year for the injury count, and he directed that all sentences be served concurrently.
[15]R v O’Rourke [1997] 1 VR 246 (Winneke P, Brooking and Callaway JJA) (‘O’Rourke’).
On appeal by the Director of Public Prosecutions, the Court of Appeal held that the sentencing judge erred in directing total concurrency of all sentences on the basis that all the offences were part of one relatively short continuous episode. But the Court said[16] that
it should not be thought that we are expressing the view that it is an immutable principle of sentencing that, where an offender has been found guilty of committing a series of sexual or violent acts on the same victim during the same episode, he or she is always bound wholly or partially to cumulate the penalties. There is not, in our view, any such principle of sentencing. Each case must depend upon its own facts. There may be, and indeed sometimes are, cases where because of the penalties already imposed the sentencer refrains from directing further cumulation lest there be imposed a crushing sentence or a sentence which offends against the principle of totality. Furthermore there are circumstances where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency. Clearly one or more of these considerations influenced the decisions in R v Pearson (unreported, Court of Criminal Appeal, 6 June 1995) and R v Gorman (unreported, Court of Appeal, 10 August 1995), to which decisions the learned judge referred in his sentencing remarks.
What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts and whether it should be in whole or in part. …
[16]Ibid 253.
Although O’Rourke was decided prior to the advent of Part 2A of the Sentencing Act 1991 (and in particular, s 6E, which provides that, unless otherwise directed, every term of imprisonment imposed on a serious offender for a relevant offence is to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender), the fundamental principles informing the passage immediately above remain unchanged. Indeed, notwithstanding s 6D(b), which permits the imposition of a sentence disproportionate to the gravity of the offending in order to achieve the purpose of protection of the community, it is well accepted that the principles of both proportionality and totality remain important in sentencing serious sexual offenders for serious sexual offences.[17] No doubt, as the judge’s reasons for sentence indicate, his Honour was aware that this is so.
[17]R v Cowburn (1994) 74 A Crim R 385; R v Connell [1996] 1 VR 436.
The sentencing judge, as we have indicated, acknowledged that a number of the individual sentences that he imposed might in some cases appear to be ‘modest’. So much does not, of course, necessarily bespeak error. As was observed in Jones:[18]
The application of principle requires a sentencing judge to avoid imposing artificially inadequate sentences in order to accommodate the mandates of cumulation. Where there are multiple charges on an indictment, a judge should pass appropriate and proportionate sentences on each individual count. After the sentences for each individual charge have been arrived at, the totality principle requires the sentencing judge to have regard to the aggregate sentence that should be imposed to reflect the totality of the criminal conduct.[19] A sentencing judge, having imposed proper individual sentences on each count, and having arrived at orders to effect cumulation or concurrency as between the individual sentences, must then stand back and examine the total effective sentence to ensure that it reflects the overall criminality for which the offender is being sentenced and so as to ensure that it is not crushing. If necessary, this may be achieved by adjusting the orders for total or partial cumulation or concurrency, or by lowering the individual sentences.[20]
[18]DPP v Jones (a Pseudonym) (2013) 40 VR 267, 288 [90] (Redlich and Priest JJA) (citations as in the reported version) (‘Jones’). See also Reid ( a Pseudonym) v The Queen (2014) 42 VR 295, 322 [116] (Priest JA, Maxwell P and Whelan JA agreeing).
[19]Mill v R (1988) 166 CLR 59, at 62–3.
[20]We acknowledge that there are differing views as to whether there is any single correct approach. In our view, however, the correct approach is for the sentencing judge to pass appropriate individual sentences, and — depending on the sentencing regime being applied — order total or partial cumulation or concurrency. A court should, in our opinion, avoid imposing artificially inadequate sentences in order to accommodate totality: see R v Lomax [1998] 1 VR 551; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; DPP (Cth) v KMD [2015] VSCA 255, [95]–[96].
And as was also observed in Jones:[21]
The principles of proportionality — that the severity of the punishment be just and commensurate with the offender’s degree of criminality — is fundamental to the sentencing process.[22] It operates to define both the upper and lower limits of punishment. Where the offender is to be sentenced for multiple offences the effective sentence will be less than the sum of its parts because the severity of the sentence increases exponentially as it increases in length.[23] Any sentence must be no more severe than is necessary to satisfy the various objectives of sentencing.[24] The principle of proportionality thus constrains both excessively lenient as well as the overly severe responses to crime.[25] ...
[21]Jones, 290 [100] (citations as in the reported version).
[22]Azzopardi v R (2011) 35 VR 43, at 59–60, [57].
[23]At 61, [62].
[24]At 61, [61].
[25]R v Whyte (2002) 55 NSWLR 252; R v McNaughton (2006) 66 NSWLR 566, at 572, [15]; Maurice v R (1992) 2 NTLR 115, at 116–17; ALRC, Same Crime, Same Time: Report 103, Sentencing of Federal Offenders [5.3].
Ground 2 in effect complains that the sentencing judge erred by directing that five years of the individual sentences of six years’ imprisonment imposed on charges 4, 6, 7, and 8, and two years, 30 months, 18 months and two years respectively of the sentences on charges 5, 9, 10 and 11, be served concurrently with the sentence of six years’ imprisonment imposed on charge 2. And ground 3 asserts that the individual sentences imposed on the charge of aggravated burglary (charge 1) and five charges of rape (charges 2, 3, 4, 6, 7 and 8) are manifestly inadequate, as are the orders for cumulation, the non-parole period and the total effective sentence. In our view, however, although the individual sentences on charges 1, 2, 3, 4, 6, 7 and 8 are indeed ‘modest’, when proper regard is had to the needs of proportionality and totality, they are within the range properly open in the sound exercise of discretion. Perhaps more importantly, the Director has failed to persuade us that either the total effective sentence (produced by the orders for concurrency of the sentences on charges 4 to 11 on the sentence on charge 2) or non-parole period are manifestly inadequate.
It is worthwhile repeating the oft-cited passage from the judgment of Gleeson CJ and Hayne J in Dinsdale:[26]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. …
[26]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (‘Dinsdale’).
There is no single correct sentence for an offender and an offence.[27] An appellate court’s power can only be engaged if the court is satisfied that the sentencing judge’s discretion miscarried because in the result the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offending consistent with sentencing standards.[28] Given that the discretion that the law commits to sentencing judges is of vital importance to the administration of criminal justice, this Court could not substitute its own opinion for that of the sentencing judge merely because its members might have exercised their discretion differently from the manner in which the sentencing judge exercised his discretion.[29] Although we regard the individual sentences, the total effective sentence and non-parole period imposed as being towards the lower end of the appropriate range, it is not ‘plainly apparent’ to us that they are ‘manifestly … too short’.
[27]Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
[28]Ibid. See also Munda v Western Australia (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[29]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Although not given much prominence in the judge’s sentencing remarks, the respondent’s background was, as we have indicated, one of profound deprivation and abuse. So far as the effect of such deprivation is concerned, the High Court observed in Bugmy:[30]
… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[31] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[30]Bugmy, 594–5 [43]–[44] (citations as in original).
[31]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
There seems little doubt that the experience of growing up in an environment of alcohol abuse and overt violence has left its mark on the respondent. Indeed, we have no reason to doubt the opinion of Mr Cummins, the psychologist, that the respondent is afflicted by a trauma-related disorder in the form of PTSD, characterised by flashbacks and negative ruminative thinking concerning his upbringing and sexual abuse. Notwithstanding his criminal history, the respondent’s personal history of childhood deprivation and abuse remains a feature of his make-up, relevant to the determination of the appropriate sentence in the present case.
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[32]
[32]See DPP v Heyfron [2019] VSCA 130, [57]–[58].
Albeit that the respondent’s was a single episode of offending, it was abhorrent, protracted and punctuated with individual humiliating sexual acts. No doubt the impact on the victim was profound. The offending needed to be punished and denounced. General and specific deterrence were important, and community protection had to be regarded as a principal purpose of sentencing.
In balancing the various features animating the exercise of the sentencing discretion, however, the respondent’s history of childhood deprivation, violence and abuse also had to be given appropriate recognition.
Although we consider the sentence imposed by the primary judge to be lenient, endeavouring properly to synthesise all relevant features we are unable to conclude that the sentence imposed is in any sense manifestly inadequate, or that the sentencing judge otherwise erred in any of the ways contended for by the Director.
We would dismiss the appeal.
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